### WILLIAM V. O'CONNOR, JR. (CA SBN 216650) WOConnor@mofo.com 

# RECEIVED AUG 

## -9 2013 

## HEARING DOCKET 2 JOANNA L. SIMON JoannaSimon@mofo.com 3 MORRISON & 

### FOERSTER LLP 

### 12531 High BluffDrive 4 San Diego, California 92130-2040 Telephone: 858.720.5100 5 Facsimile: 858.720.5125 6 Attorneys for Alaska Airlines Inc. 7 8 

### 9 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 10 11 In the Matter of: 12 Alaska Airlines Inc. FAA Case No. 2011NM020013 ALASKA AIRLINESINC.'S MOTIONTO COMPELAND UNOPPOSED MOTIONTO CONTINUE 13 14 15 ------------------' THE AUGUST 20,2013 HEARING DATE



### I. INTRODUCTION 16 Based on the limited discovery AlaskaAirlines has been permitted in this matter, it is 17 clearthat there is almost no support for this enforcement action within the FAA Certificate 18 Management Office ("CMO") due to a lack ofreliable evidence. In an attempt to conceal the 19 weight ofthis internal opposition, Government counsel is now making every effortto prevent 20 AlaskaAirlines from completing its investigation and readyingthis case for hearingthrough 21 improper and unsupported assertions ofthe deliberative process privilege throughout a highly 22 relevant deposition. Government counsel repeatedly made tenuous objections which, in many 23 instances, resulted in instructions to an FAA witness not to answer questions. None ofthe 24 objections did anything more than pay lip service to the vague existence ofa privilege, even 25 though AlaskaAirlines's counsel repeatedly asked the Government to clarify its position. The 26 Government has not met its burden, and has deprived Alaska Airlines ofinformation forming the 27 basis ofthe Government's privilege assertion. Alaska Airlines is entitled to the discovery 28 ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 11 requested by this motion. 2 Most importantly, the Government instructed FAA Aviation Safety InspectorJustin 3 Meisberger not to answer any questions relating to the Enforcement Investigative Report 4 Checklist (the "EIR Checklist") completed by the FAA in this case. 1 This EIRchecklist, which 5 was

### purposefully and 

### voluntarily disclosed to AlaskaAirlines by FAA Assistant Principal 6 Operations Inspector ("POI") Joel Wade,2 states that there 

### "isnoconclusive evidence to support' 7 the violation alleged in the Complaint, and that the sole passenger witness to the alleged violation 8 has credibility that "is in question." The EIR Checklist further provides that the passenger 9 witness "acted contraryto logic" and "sacrificedbelievabilityby not notifYing flight crew" ofthe 10 alleged violation. The production ofthe EIR Checklist, along with Assistant POI Wade's 11 comments to AlaskaAirlines about the details ofthe investigation, waives the deliberative 12 process privilege related to the FAA's investigation. All testimony aboutthe conclusions ofthe 13 EIR is thus fair game, notto mention necessary for AlaskaAirlinesto defend itselfin this 14 proceeding as a matterofdue process. This conclusion is undeniable, because the EIR Checklis..!_ 15 and otherdocuments were disclosed by the singular authority within the CMO responsible for the 16 investigation. The Government'sunsupported privilege assertion related to the EIRChecklist and 17 testimony about it wholly lacks merit. 18 In fact, the Government took an unsupported view ofthe deliberate process privilege from 19 the very beginning ofInspectorMeisberger's deposition, instructing him notto answerquestions 20 regarding plainly unprivileged material, material: for example, whetherthere was factual matter 21 in the Enforcement Investigative Report ("EIR") that was not provided to AlaskaAirlines; which 22 two Federal Aviation Regulations ("FARs") the FAA chose to include in its investigation; and 23 whether a particular individual, whose name was listed on the EIR, was involved in the 

### 24 25 

### 26 27 

### 28 1 InspectorMeisberger's deposition has been suspended pending the Court's ruling on this Motion.

2 Joel Wade is now an FAA Aviation Inspector. At all times relevant to this investigation, however, he was the Assistant POI at the AlaskaAirlines CMO. Forpurposes ofthis motion, he will be referred to as the Assistant POI.

ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 2investigation. Despite Alaska Airlines's multiple requests for explanation regarding these facially 2 unreasonable privilege assertions, Government counsel merely maintained that each question 3 went to "the essence ofdeliberative process." This (lack of) explanation by Government counsel 4 is wholly insufficient to support the privilege. 5 The Government has forced Alaska Airlines to file this motion to compel, ratherthan 6 engage in meaningful discussion about the scope ofthe asserted privilege ("We can go into this 7 with motions in front ofthejudge"). AlaskaAirlines**request~** that this Court: (1) compel answers 8 to deposition questions; (2) require the FAAto produce additional documents related to the EIR 9 and the EIRChecklist; (3) orderthatthe EIRChecklist and related documents are not protected 10 by the deliberative process privilege; and (4) compel additional discovery as set forth fully herein. 11 In orderto accommodate this motion, AlaskaAirlines requests that the Court continue the 12 hearing date in this matter until such time as the privilege issues are resolved and discovery can 13 be completed. The Government has agreed not to oppose AlaskaAirlines's motion to continuethe 14 hearing date. 15 II. 

### BACKGROUND 16 The Government's Complaint is based entirely on an unsubstantiated passengerreport of 17 "frost" adhering to the upper wing surface during takeoffofAlaskaAirlines Flight 86, which 18 departed Anchorage, Alaska on January 7, 2011. According to FAA's investigation, the pilots of 19 Flight 86 conducted all required-checks priorto takeoff, there was no visible moisture in the air or 20 on the ground at the time oftakeoff, and the passengerwho saw the purported frost did not report 21 any frost to the aircraft's crewpriorto takeoff(or at any time during the flight, for that matter).3 22 O'ConnorDecl.**~** 2, Ex. A (EIR2011NM020013, Section B) at 2 ("12:36: ATIS reported weather 23 was clear");Id. at 3 (the passenger confirmed "thathe did not see any visible moisture in the 24 terminal area"); Id.**~** 3, Ex. C (MeisbergerDepo.) at 49:15-50:4. Nonetheless, the 25 unsubstantiated passengerreport sparked an FAA investigation concerning the alleged frost. 26 After conducting an investigation, the aviation safety inspectors assigned to the file, 27 3 The passengerwitness is Mr. John Elgee, a retired FAA Aviation Safety Inspector. 28 ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 3

### InspectorMeisberger and Assistant POI Wade, recommended 

### againstthe filing ofthis 2 enforcement action, rightly concluding that, for several reasons, the passenger who reported the 3 "frost" lacked credibility and that there 

### "no conclusive evidence" to prosecute the action. 4 O'ConnorDecl.**~** 

### 5, Ex. D (EIR Checklist) at 3

.. At some point thereafte-r, however, Inspector 5 Meisberger's and Assistant POI Wade's original recommendation against enforcement was 6 ignored, and, on the eve oftherunning ofthe statute oflimitations, a Notice ofCivil Penalty was 7 sentto AlaskaAirlines. O'ConnorDecl.**~** 

### 6, Ex. E (Notice ofProposed Civil Penalty). On May 8 14, 2013, the Government filed its Complaint, alleging that Alaska Airlines violated 14 C.F.R §§ 9 119.5(1) and 121.629(b) "when ittook offwith an aircraft with frost on the upper wing surface." 10 O'ConnorDecl.**~** 

### 3, Ex. B (Complaint). 11 Discovery commenced and, pursuantto its discoveryrequests, Alaska Airlines was 12 provided portions ofthe EIRand the Government's items ofproof("lOPs"). Much ofthe EIR 13 and the lOPs were redacted and withheld based on the unexplained assertion that they were 14 privileged, and despite the fact that they contained purely factual information. O'ConnorDecl.**~** 

### 15 2, Ex. A (EIR2011NM020013, Section B). The EIRprovided that on January 7, 2011, the Alaska 16 Airlines Certificate Management Office ("CMO") received a notification from apassengerthat 17 Flight 86 departed Anchorage with, what "was in his estimation," 

### frost on the wings. Id., 

### Ex. A 18 (EIR2011NM020013, Section B) at 1(emphasis in original). The EIR also provided that there 19 was no visible moisture in the air at the time oftakeoff, and that under AlaskaAirlines's 20 procedures in place at the time

- which had, ofcourse, been approved by the FAA -no additional 21 deicing procedures were necessary. Id. 

### Ex. A (EIR2011NM020013, Section B); Id.**~**

### 4, Ex. C 22 (MeisbergerDepo.) at 49:20-50:2. 23 On February 25, 2013, immediately after the FAA filed its Notice ofProposed Civil 24 Penalty, Jim Winkelman, Alaska Airlines's Director ofFlight Operations Compliance and Quality 25 Management, received a visit from Assistant POI Wade, the "reviewer" assigned to the EIR 26 Checklist and the FAA's second-in-command within the CMO at the time ofthe investigation. 27 Winkelman Decl.**~~** 

### 1, 2, 3. AssistantPOI Wade showed, and later provided, Mr. Winkelman 28 with a copy ofthe EIR Checklist and other documents. Id.**~** 

### 3, Ex. A (EIR Checklist). Assistant ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 4

### 1 POI Wade explained that he did not think enforcement ofthis action was proper and that he 2 recommended the FAA not pursue the matterbecause ofquestions about the passengerwitness's 3 credibility and the lack ofconclusive evidence to supportthe civil penalty. Jd.**~** 

### 5. Assistant POI 4 Wade explained that he had several reasons to question the passenger's credibility, including the 5 passenger's failure to alert the flight crew before takeoff. !d. 

### Assistant POI Wade also explained 6 that, after he recommended against enforcement, the file was sentto a different..reviewer (for 7 unknown reasons).4 Id.**~** 

### 6. 8 At InspectorMeisberger's August 1, 

### 2013 deposition, Government counsel objected to 9**(a~d** 

### gave instructions not**~o** 

### answer) any question_yaguely seeking information that may have 10 formed any part ofthe FAA's deliberative process. For example, FAA counsel instructed 11 InspectorMeisbergernotto answerthe following questions, on the ground that they sought 12 privileged information: 13 

### 14 15 16 17 18 19 20 • Whetherthere was factual matter in the Enforcement Investigative Report that was not providedto Alaska-Airlines; O'ConnorDecl.**~** 

### 4, Ex. C (MeisbergerDepo.) at 16:10-17:15 ("what hasn'tbeen provided to you, is privileged information.");

• Which two Federal Aviation Regulations ("FARs") the FAA chose to rely on; id. 

### Ex. C (MeisbergerDepo.) at 67:16-68:20 ("What'sprivileged about the recitation oftwoFARs?"); and

• Whether a particularindividuai was involved in the investigation (even though his name was listed on the EIRand Alaska Airlines had long known he was involved in the investigation). !d. 

### Ex. C (MeisbergerDepo.) at 76:2-21 ("Was Mr. Wade involved in this investigation?") 21 Further, Government counsel objected to (and gave instructions not to answer) any 22 questions regarding the EIR Checklist, the original recommendation against enforcement, the 23 finding that there was 

### "no conclusive evidence to support" 

### enforcement, orthe finding thatthe 24 passengerwitness lacked credibility. !d. 

### Ex. C (MeisbergerDepo.) at 109:9-115:15. Government 25 26 27 28 4 It

### should be noted, however, that the passengerwitness is married to Angela Elgee, who was, at the time, the FAA Division Manager for the Alaska region, which is the highest ranking FAA official in Alaska. Also notable is that the original e-mail complaint concerning the purported frost was sent from the passengerdirectly to Angela Elgee.

ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 

### 51 counsel again based his purported objections on the "deliberative process privilege," without any 2 further explanation as to how orwhy the documents were privileged. !d. Ex. C (Meisberger 3 Depo.) at 110:10-13; 110:16-18, 110:22-25; 111 :4-7; 111 :9-17; Ill:25-112:21. Yet, the FAA 4 authority involved in the very deliberation the Government now seeks to cloak, Assistant POI 5 Wade, knowingly and intentionally disclosed the EIR Checklistto Alaska Airlines. The EIR 6 Checklist showsthe Government's initial recommendation against prosecution based on the 7 finding thatthe passengerwitness lacked credibility and thatthe evidence was insufficient. 8 AssistantPOI Wade provided these documents because, in his view, this action was "totally

. 9 bogus" and "notvalid." Winkelman Decl.**~** 7. Even ifthe EIRChecklist and the FAA's non1

0 enforcement and lack ofcredibility determinations were somehow subject to the deliberative 11 process privilege as Government counsel now suggests (though this certainly has not been 12 demonstrated), the FAA plainly waived that protection through its purposeful and voluntary 13 disclosure ofthe EIRChecklist and related documents. 14 III. MOTION TO COMPEL STANDARD 15 Under 14 C.P.R. § 13.220(e) discovery may be had concerning "anymatterthat is not 16 privileged and that is relevantto the subject matter ofthe proceeding." A motion to compel is 17 proper if"aperson refuses to answer a question during a deposition," or "fails orrefuses to 18 answer an interrogatory" or "fails orrefuses to produce documents ortangible items." 14 C.F.R. § 19 13.220(m). The administrative lawjudge "shall resolve disputes regarding discovery[.]" !d. § 20 13.217(c). 21 IV. ALASKA AIRLINES MOTION TO COMPEL SHOULD BE GRANTED 22 Alaska Airlines's Motion to Compel should be granted because the Government has not 23 established thatthe EIRChecklist or other information sought by AlaskaAirlines is privileged, 24 and, in any event, any applicable privileged has been waived through the Government's deliberate 25 disclosure. 26 27 28 

### A. The Government Has NotMetIts Burden to Establish ThatTheEIR ChecklistIs Protected By The DeliberativeProcess Privilege The Government has wholly failed to meet its burden ofproving the deliberative process

ALASKA AIRLINES'S MOTION TO COMPEL (No. 201 1NM020013) sd-622999 6

### privilege applies to the EIR Checklist and related documents and testimony. The party asserting 2 the privilege bears the burden ofproving each essential element. See Pac. Fisheries, Inc. v. 

### 3 UnitedStates, 

### 539 F.3d 1143, 1149 (9th Cir. 2008) ("the record was insufficient because it did 4 not provide Pacific Fisheries orthe district court with specific**~nough** 

### information to determine 5 whetherthe IRS had properly segregated and disclosed factual portions ofthose documents that 6 the IRS claimed were exempt under the deliberative process privilege."); UnitedStates v. Graj, 

### 7 610 F.3d 1148, 1156 (9th Cir. 2010) (attorney-client privilege). Moreover, a declaration that the 8 Government "attemptedto segregate all factual portions ofthese documents" from the privileged



# - 9 portions is "is too conclusory to meetthe agency's burden." Pac. Fisheries, 

### 539 F.3d at 1149-50. 10 In orderto meet its burden, the PacificFisheries 

### court required the Governmentto describe in 11 "detail the withheld portions ofthese documents so that both the district court and Pacific 12 Fisheries can evaluate the government's claims ofexemption."Jd. 

### 13 Here, AlaskaAirlines has been provided nothing more than the Government attorney's 14 statementthat the requested testimony and related documents are "deliberative." Counsel for 15 Alaska Airlines requested a more detailed explanation "so [it] can determine whetherthe 16 privilege applies and when." O'ConnorDecl.**~** 

### 4, Ex. C (MeisbergerDepo.) at 111:21-24. 17 Alaska Airlines counsel explained that he was "trying to narrow the basis for the privilege" 18 because "itis literally impossible to test the privilege" without further information from the 19 Government. Id., 

### Ex. C (MeisbergerDepo.) at 18:21-23, 16:24-17:4. Yet, the Government 20 refused to provide further information, maintaining that the questions went to the "essence of 21 deliberative process." Id. 

### Ex. C, (MeisbergerDepo.) at 65:18-20. The Government's conclusory 22 statement that the EIR Checklist and related and testimony are "deliberative" is entirely 23 insufficientto meet the Government's burden ofproving the EIR Checklist is privileged. Even if 24 the Government were to meet its burden, however, the privilege has plainly been waived as 25 discussed below. 26 27 28 

### B. TheFAA Waived The Claimed Privilege ByIts Purposeful And Voluntary Disclosure OfTheEIRChecklist and Related Documents 

### The FAA's deliberate disclosure ofthe EIR Checklist- including its comments section

ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 7

### 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 

### 22 23 24 25 26 27 28 setting forth the FAA's original determination that an enforcement action should not be prosecuted due to lack ofwitness credibility, and because there was 

### "no conclusive evidence to support" enforcement- waives any privilege thatFAA counsel is now attempting to assertwith regards to the EIR checklist and related documents and testimony. Where, like here, an agency voluntarily distributes material that may have been protected bythe deliberative process privilege, that privilege is waived. See Moye, 

### 0 'Brien, 0 'Rourke, Hogan & Pickert v. Nat'!R.R. Passenger Corp., No. 6:02-CV-126, slip op. at 21 (M.D. Fla. Aug. 18, 2003), rev'don othergrounds, 376F.3d 1270 (11th Cir. 2004), cert. denied, 543-U.S. 1121 (2005). InMoye, the court held that the deliberative process privilege was waived when draft audit report results were shared by agency auditors with the subject ofthe audit. See id. ("The evidence established that, at these exit conferences, Amtrak auditors provided the contractorwith the proposed auditresults, reviewed withthe contractor**each~part** ofthe draft audit findings, and disclosed to the contractorthe audit results as set forth in the then existing exhibit to the draft audit report

... Accordingly, I find thatAmtrak's waived the deliberative process privilege"). Othercourts are in accord with theMoye, finding waiverwhere an agency discloses information to an interested party. See, e.g., Comm. to Bridge the Gap, No. 90-3568, transcript at 3-5 (C.D. Cal. Sept. 9, 1991) (bench order) (ruling that agency waived deliberative process privilege byvoluntarily providing draft orderto interested party);Nw. Envtl. DefCtr. v. US. ForestServ., No. 91-125, slip op. at 12 (D. Or. Aug. 23, 1991) (magistrate's recommendation) (determining that agency waived deliberative process privilege as to portion ofagency report that

was discussed with "interested"third party), adopted, (D. Or. Feb. 12, 1992). Here, the FAA authority responsible for the investigation purposefully provided the EIR checklist, including the credibility comments and "no conclusive evidence" finding, to Alaska Airlines (an obviously interested party). See Winkelman Dec!. 

### ,-r 3, Ex. A (EIR Checklist). Assistant POI Wade, second-in-command within the CMO, provided the EIRChecklist directly to Jim Winkelman, Alaska Airlines's DirectorofFlight Operations Compliance.Id. 

### ,-r 3. He did

so afterthe Notice ofProposed Civil Penalty had been filed, with full knowledge he was disclosing highly material agency information concerning the FAA's investigation to an ALASKA AIRLINES'S MOTION TO COMPEL (No. 201 INM020013) sd-622999 8"interested party"

- indeed, to the respondent in this action. Indeed, AssistantPOI Wade 2 disclosed that he thought the FAA's action was "totally bogus." Id.**~~** 3, 7. This deliberate 3 action by a seniorFAA official (who was directly involved in the investigation, no less) plainly 4 waives any privilege that may have attached to the EIR checklist, comments, and other 5 documents and conversations that may have concerned the original recommendation against 6 enforcement and the finding that the passengerwitness lacked credibility. 7 8 

## c. TheFAA's "No Conclusive Evidence" and Passenger Credibility Findings AreHighlyRelevant

9 The Government's case rests solely on the credibility ofone passengerwitness, who 10 allegedly saw "frost" on the upper-wing ofFlight 86. Yet this passenger, despite purported 11 knowledge ofthe dangers oftaking offwith a contaminated aircraft, did not report the "frost" to 12 the flight crew. The FAA has expressed serious doubts about the passengerwitness's credibility. 13 Indeed, the FAA's doubts were so strongthattheFAA Inspectors assigned to the file concluded 14 thatthere was 

### "no conclusive evidence to support" this enforcement action. These findings were 15 purposefully and voluntarily shared with AlaskaAirlines. Fairness now dictates that all evidence 16 related to the EIRChecklist and the findings contained therein is both discoverable and 17 admissible. 18 

### D. OtherImproper Government Objections 19 The Government's further deliberative process-based objections to questions seeking 20 plainly relevant, unprivileged information (like whether, to the best oflnspectorMeisberger's 21 knowledge there was factual matter in the EIRthat was redacted) are also improper. The 22 deliberative process privilege does not protect purely factual, investigative material contained 23 documents that may be otherwise deliberative. See EPA v. Mink, 410 U.S. 73, 89, 91 (1973). 24 Accordingly, this Court should compel further answers to, for example, the following questions: 25 

### 26 27 28 • Whetherthere was factual matter in the Enforcement Investigative Report ("EIR") that was notprovided to Alaska Airlines;

• Which two Federal Aviation Regulations ("FARs") the FAA chose to include in its investigation; and

ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) 9 sd-622999

### 2 3 4 5 6 

### 7 8 9 

### 10 11 • Whether a particular individual, whose name was listed

# on the EIR, was involved in the investigation. Moreover, the Court should compel answers to any other question that does not implicate information and/or documents that are pre-decisional and deliberative. In AlaskaAirlines's view, the only way to determine the scope ofthe information being improperly withheld by Government counsel is for the Courtto review the entirety ofthe unredacted EIR and lOPs in

camera 

### and to make specific rulings on the propriety ofeach ofthe Government's privilege designations. See Steinberg v. UnitedStatesDep'tof Justice, 

### 179 F.R.D. 357, 364 (D.D.C. 1998) (requiring agency to submit documents for in camera

### review ofsegregability). 

### V. ADDITIONAL DISCOVERYMATTERS 

### A. TheFAA Should Be Required To ProduceIts Purported Expert's Opinions 12 In its discovery responses, the Government indicated that it intends to call Thomas Bond 13 as an expert witness. O'ConnorDecl. 

### ,-r 7, Ex. F (Discovery Responses) at 1. 

### The Government's 14 responses also said that "a list ofthe expert'sprevious testimony will be forthcoming" and 15 referred AlaskaAirlines to the EIR as the expert's "written report." Id., 

### Ex. F (Discovery 16 Responses) at 2. Counsel for Alaska Airlines has repeatedly requested supplementation ofthese 17 responses. Id. 

### ,-r 9. Government counsel has admitted that the EIR does not in fact contain Mr. 18 Bond's expert opinions. Id. 

### ,-r4, Ex. C MeisbergerDepo. at 65:6-13. As Mr. Bond'sopinion 19 appears to be the sole basis ofthe Government's case against Alaska Airlines, the Court should 20 compel production ofMr. Bond's expert report to allow Alaska Airlines an opportunity to review 21 the basis for this action. 

### 22 23 24 25 26 27 28 

### B. TheFAA Should Be Required To ProduceAll Correspondencewith John Elgee AlaskaAirlines requested "all correspondence, including e-mails, any employee ofthe [FAA] has sent to orreceived from John Elgee regarding this action orthe allegations in the complaint." O'ConnorDecl. 

### ,-r 7, Ex. F (Discovery Responses) at 4 (RFP No.4). The Government objected, arguing that "this requests seeks attorney communication and orattorney work product."Jd., 

### Ex. F (Discovery Responses). Mr. Elgee is the passenger witness to this alleged

ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 

### 101 incident, not a FAA employee. Accordingly, communications with Mr. Elgee cannot be protected 2 by either attorney-client orwork-product privilege. TheFAA should be compelledto produce 3 these communications. 4 

## c. Alaska Airlines's OutstandingDiscovery Requests 5 AlaskaAirlines recently served the Government with a second set ofdiscovery**request~.** 6 Based on the Government'sprivilege waiver, Alaska Airlines is entitled to full responses to its 7 second set ofdiscovery. O'ConnorDecl.**~** 8, Ex. G (Discovery Requests (SetTwo)). These 8 requests include interrogatories concerning (1) changes the FAA intends to make to 14 C.F.R. § 9 121.629; (2) the identity ofexperts who reviewed oranalyzed certain photographs; and (3) 1

0 aggravating ormitigating circumstances identified bythe FAA investigators. The requests also 11 seek documents (1) contained in InspectorMeisberger's files related to this action; (2) contained 12 in Assistant POI Wade's files related-to this action; and (3) contained in FAA Supervisory 13 Aviation Safety InspectorWaltBala'sfiles related to this action. !d., Ex. G. AlaskaAirlines 14 anticipates the Government will objectto theserequests, by citing deliberative processprivilege. 15 As discussed above, AlaskaAirlines requeststhatthe Court find the purposeful disclosure ofthe 16 EIRChecklist in Assistant POI Wade's files waived any deliberative process privilege that may 17 be claimed in response to AlaskaAirlines's second set ofdiscovery requests. 18 VI. REQUEST FORA CONTINUANCE OFTHE AUGUST 20,2013 HEARING 19 In orderto resolve the outstanding issues, AlaskaAirlines requests thatthe Court continue 20 the hearing date in this matteruntil such time as the privilege issues are resolved and discovery 21 can be completed. The Government has no objection to therequest for a continuance. O'Connor 22 Decl.**~** 10. 23 II 24 Ill 25 Ill 26 Ill 27 Ill 

### 28 ALASKA AIRLINES'S MOTION TO COMPEL (No. 2011NM020013) sd-622999 11

### 1 VII. CONCLUSION 2 Forall the foregoing reasons, this Court should grant AlaskaAirlines's Motion to 3 Compel. Additionally, the Court should continuethe hearing in this matter. 4 5 6 7 

### 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 

### 25 26 27 28 Dated: August 

### 9, 2013 MORRISON & FOERSTER LLP

ALASKA AIRLINE'S MOTION TO COMPEL (No.201INM020013) sd-622999 Attorneys for Defendant ALASKAAIRLINES INC.

12CERTIFICATE OF SERVICE 2 The undersigned certifies underpenalty ofperjury under the laws ofthe State of 3 Californiathat on this date I caused to be served in the matter indicated a copy ofthe within and 

### 4 foregoing document uponthe followingpersons: 5 

### 6 7 8 9 10 11 12 13 Federal AviationAdministration Attn: Hearing Docket Clerk, AGC

- 

### 4.30 Wilbur Wright Building- Suite 2W1000 Washington, D.C. 20591

Robert Spitzer Robert.Spi.t£er@faa.gov FAA Office ofRegional Counsel 1601 Lind Avenue, SW Renton, W A 98057

14 Dated: August 9, 2013 15 16 17 18 19 20 21 22 23 24 25 

### 26 27 28 Ce11i ate ofService (No. )11NM020013) 1 ViaNationwide Legal, Inc.

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